Opinion
April 29, 1966
Appeal from an order of the Supreme Court, entered in Clinton County, which dismissed a writ of habeas corpus, after a hearing. Relator was convicted in the County Court of Dutchess County upon each of three counts of an indictment charging (1) attempted sodomy in the first degree, (2) assault in the second degree, committed by feloniously assaulting a female nine years of age "with intent to commit upon [her] the crime of attempted sodomy in the first degree, (being the same transaction set forth and referred to in the First Count of this Indictment)" and (3) the misdemeanor of endangering the life or health of a child. For all of these crimes the court imposed a single sentence of imprisonment for an indeterminate term, the minimum thereof to be one day and the maximum the duration of the defendant's natural life. Such punishment is specifically authorized for sodomy in the first degree (Penal Law, § 690, subd. 5) or upon conviction of "assault in the second degree for an assault upon another with intent to commit the felony of * * * sodomy in the first degree" (Penal Law, § 243); but not for the "attempted sodomy" or the assault "with intent to commit * * * attempted sodomy" or, of course, the misdemeanor, of which relator was convicted. The writ was issued upon a petition captioned "Motion for Resentence and New Trial" and requests an order vacating the judgment of conviction "insofar as it imposes an illegal sentence". We consider that the issue of excessive sentence was sufficiently tendered and find it established. We decide no other question. Judgment reversed, on the law, without costs, and writ sustained, and relator remanded to the County Court of Dutchess County for resentence. Gibson, P.J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.